What you don’t know about Collaborative Law could expose you to an ethics violation. Rule 2.1 Comment (5) of the Maryland Rules of Professional Conduct read “…when a matter is likely to involve litigation, it may be necessary…to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation…” In 2007, the Rule was revised to reflect that “…the lawyer should advise the client of forms of dispute resolution that might constitute reasonable alternatives to litigation…,” which necessarily include Collaborative Law.
The Collaborative Law process – an alternative dispute resolution method currently used by practitioners in 29 states and 10 countries – has gained momentum in recent years. Stuart G. Webb, Esquire, of Minneapolis, Minnesota, “created” Collaborative Law in 1990, when he started enrolling other family law attorneys in a new model of dispute resolution that utilized a different structure and different attorney skills than those of the traditional adversarial dispute resolution process. In fact, the key element of the Collaborative Law model he created is the disqualification provision, which requires the parties’ attorneys to withdraw if the process fails and the case heads towards litigation. The parties and their counsel are also restricted from threatening to litigate if the process is not going their way. Thus, the process provides significant disincentives to simply quitting when the going gets rough.
The disqualification provision is included in a larger Participation Agreement, which is signed by both parties and their counsel. This Agreement provides for a respectful, open process which includes full disclosure of all relevant documents and information, and which aims for an outcome which will address the priorities of both parties as well as their children.
Other professionals, such as mental health practitioners and financial experts, trained in the Collaborative Law process, can participate in the meetings to help clients overcome emotional roadblocks that may interfere with resolution, develop parenting plans, teach communication strategies and offer financial expertise.
Clients who commit to the Collaborative Law process are not just making a deal – they are looking toward the future, and their ability to coparent, communicate and constructively interact with their former spouse after the case is over.
Concerns about Collaborative Law center upon ethics. That is, can an attorney simultaneously adhere to the Rules of Professional Conduct and practice collaboratively? Ethics Opinions from North Carolina, Kentucky, Maryland and New Jersey have favorably addressed a variety of ethical issues posed by practitioners in those states. Although an advisory Colorado Ethics Opinion concluded that it is unethical for a collaborative law attorney to enter into an agreement with the opposing party requiring the attorney to withdraw in the event that the process is unsuccessful, the ABA’s Standing Committee on Ethics and Professional Responsibility squarely disagreed in its Formal Opinion 07-447. The ABA opinion holds that the four-way agreement between parties and counsel is a permissible limited-scope representation, provided that the limitation is reasonable and the client provides informed consent to participation in the Collaborative Law process.
As use of the collaborative process has approached a ‘tipping point,’ practitioners have discovered Collaborative Law benefits in civil disputes outside the realm of family law (e.g. business and probate disputes). In January 2007, two attorneys in Massachusetts utilized the Collaborative Law process to handle the break-up of an S Corporation. The process brought the parties to an efficient resolution of the issues such that by May 2007 an agreement was in place that benefited each party, the corporation’s customers and managed to leave open the possibility of future ventures among the parties.
To meet the growing demand for information on the use of the collaborative process in civil matters, the International Academy of Collaborative Professionals, in addition to providing education, training and valuable resources for collaborative professionals and the public at large, developed proposed civil protocols and have posted on their website sample Participation Agreements for civil disputes, as well as a wealth of information for family law matters.
Collaborative Law will receive yet another boost when a uniform statute being promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL) is sent to the states for enactment. The draft Uniform Collaborative Law Act requires that the parties sign a written agreement committing counsel to both parties to withdraw if the collaborative case is unsuccessful and the matter heads into litigation. It also creates a privilege for a “Collaborative Law Communication”, and exempts collaborative law cases from judicial case management.
Now that the ABA Ethics Committee settled the issue of whether Collaborative Law is ethical with a resounding “Yes,” collaborative professionals in Maryland, the Dis-trict of Columbia and Virginia have united in an effort to pro-mote greater public awareness of Collaborative Law as a viable means of resolving disputes.
The authors are founding members of the Maryland Collaborative Practice Council (MCPC), the statewide umbrella organization for Collaborative Practice.